Casey v Cartwright

The defendant appeals with the permission of His Honour Judge Holman against his case management decision of 6 April 2006 whereby he revoked the permission granted by District Judge Beattie on 12 October 2005 to the parties to rely on the evidence of a joint expert on the orthopaedic issues arising in this case. Pursuant to the permission of the district judge, the parties had instructed Mr RJ Williams, who had produced a report dated 20 February 2006. It is unusual for a judge to give permission to appeal to this court against a case management decision that he or she has made. Such appeals are not encouraged. But Judge Holman gave permission in this case because he considered that his decision raised important policy issues, particularly in the light of the decision of this court in Kearsley v Klarfeld [2005] EWCA Civ 1510 (6 December 2005).

This is a low-velocity road traffic claim. On 6 September 2004, a collision occurred between two cars, one driven by the claimant and the other by the defendant. The defendant collided with the rear of the claimant’s car. The defendant has admitted liability. Proceedings were issued in March 2005 with damages limited to £10,000. The particulars of claim were supported by medical reports from Dr Mark Middleman dated 26 January and 22 February 2005 following his examination of the claimant on 12 January. He concluded that the claimant had sustained a typical soft tissue whiplash injury. He recommended physiotherapy and his prognosis was that there would be full recovery within 9 months of the accident.

As early as September, the defendant’s insurers stated that they considered this to be a low-velocity impact case and that on that account causation would be in issue. This position was amplified in the defence which pleaded that this was a very gentle incident; the speed of the defendant’s vehicle was around 2 mph; and that the force transmitted from the defendant’s vehicle to the claimant’s vehicle was insufficient to cause personal injury to the claimant.

The district judge gave permission to the claimant to rely on the evidence of Dr Middleman and, as we have said, to both parties to instruct a joint expert to deal with orthopaedic issues. The case was allocated to the multi-track and transferred to Manchester.

The district judge ordered the joint expert’s report to be served by 16 December 2005. In fact, it was not served until 22 February 2006. Mr Williams said that there was a wealth of published evidence to the effect that at impact velocities of between 5 and 10 mph, injury to the occupant(s) of the struck vehicle is unlikely to occur, and if it does occur, it is likely to result in symptoms lasting no more than a few days. This is because the forces directly attributable to the impact velocity are modified by the absorption of energy by the two vehicle upon impact with resultant velocity change in the struck vehicle. This is known as “delta V”. The velocity change is approximately half the impact velocity. Mr Williams concluded that from the information available and on a balance of probabilities, the collision in the instant case occurred at low velocity with a delta V of less than 5 mph.

Since the trial had been fixed for 27 February, Judge Holman decided to vacate the trial date. He fixed a case management conference for 23 March and indicated that one of the matters that he would wish to consider was what evidence should be adduced in relation to the causation issue.

The argument before the judge on 23 March ranged far and wide. In a careful reserved judgment given on 6 April, he explained why he was revoking the permission given to the parties to rely on the evidence of Mr Williams. Before we examine his reasoning, we need to refer to the decision in Kearsley.

The judgment of the court was given by Brooke LJ. The claim in that case was a low-velocity claim. The defendant wished to adduce expert evidence from Mr Newman, who is a consultant surgeon and traumatologist, to show that the nature of the impact was such that it was very unlikely that the claimant had sustained an injury as a result of the collision. On the strength of that and other evidence, the defendant pleaded that the claimant was fabricating his symptoms and that he had in fact sustained no injuries. Initially, the case was allocated to the fast-track. But both parties wished to have it allocated to the multi-track and permission for the experts to give oral evidence. The district judge refused. She considered that the directions being sought were disproportionate: this was a relatively low-value claim and she had to think of the proportionality of the costs and expense. On appeal, Judge Tetlow took a different view. He said that fairness dictated in a fraud case that it be investigated properly. The experts should be called to give their evidence orally. He allocated the case to the multi-track with a trial estimate of 2 days.

The claimant appealed to this court. His appeal was dismissed. The dilemma facing the court was described at para 28 of the judgment in these terms:

“…..A personal injuries claim which is only just above the small claims limit; an allegation by the defendant's insurers, based on complex theorizing, to the effect that the claimant has set out to present a claim he/she knows to be false; and a reluctance on the part of the defendant's insurers to accept that the court can do justice in relation to liability and causation simply by hearing the lay witnesses describe what happened in the accident and by considering written medical evidence about the simple injuries, the damage to the vehicles, and the claimant's pre-accident medical state. How is such a case to be fairly tried in less than two days, with time available for the expert evidence to be put to the test by oral evidence and cross-examination?”

At para 33, the court said that Judge Tetlow was right to overrule the district judge for the reasons that he gave. The district judge did not adequately address the question whether the case could be dealt with justly on the fast-track, or consider whether because fraud was alleged it was necessary in the interests of justice for the experts to attend so that the trial judge could properly unravel the complexities that were inherent in their contested evidence.

At para 34, the court said that this was not a case which could be justly disposed of by “paper exercises and questioning” as the district judge supposed. “By the very nature of the issues raised by the defence, the expert witnesses had to be called to give oral evidence if justice was to be done”. Judge Tetlow was right to express the views that he did.

Paras 35 and 36 are important and need to be set out in full:

“35.

We have been told by counsel for the defendants that practitioners in different parts of the country are being faced with a vast difference of approach amongst different members of the judiciary, and that this inconsistency in approach is causing confusion and expense because the same points are being argued in every case with different results. A number of experienced trial judges understandably believe that these cases cannot be dealt with satisfactorily on the papers, although the form of the directions they make may depend on what they think of the cogency of the reports before them. In the last resort it must be for the judge with case management responsibilities in the particular case to decide what directions are appropriate. But it appears to us that until some of the issues that arise in these disputes have been authoritatively dissected and analysed at High Court level, it would not be wrong or disproportionate to allocate what would ordinarily be a fast track claim (by reason of its low value) into the multi-track on the grounds that the criteria for the admission of oral expert evidence are satisfied and the trial is therefore likely to last more than one day.

36.

We hope that consideration may now be given by the designated civil judges on the Northern Circuit, in consultation with the appropriate presiding judge, to the possible value of grouping a number of these claims together before a High Court judge who has expertise in trying personal injuries litigation. At such a series of trials the judge might be able to hear a number of experts on each side of the argument and be able to give authoritative guidance on the appropriate approach to some of the generic issues that feature in these cases.”

No series of trials such as were envisaged by para 36 of the judgment has yet taken place, and, so far as we are aware, none is yet in prospect. With a view to implementing the suggestion made in that paragraph, the four designated civil judges on the Northern Circuit consulted McCombe J. They had the benefit of a paper prepared by Mark Turner QC and Berrymans Lace Mawer on behalf of a number of insurers. Their consensus was that it was not yet possible to identify suitable cases for the trial of generic issues: further investigation was required and the paper suggested that six months should be allowed for such investigation.

On 14 March 2006, McCombe J issued a Practice Note with the approval of Dyson LJ. He directed that, in order to achieve some consistency of approach pending an authoritative decision, all applications to adduce expert evidence on issues of causation in low-velocity road traffic claims on the Northern Circuit should be issued or transferred to the relevant designated civil judge.

We now turn to the judgment of Judge Holman.

The judge started with the question of the correct general approach to these cases. At paras 8 and 9, he said :

“8.

…….The overwhelming majority of these claims for damages for personal injury are modest in value. Some judges have taken the view that it is disproportionate to have experts on both sides, be they engineers or doctors (or indeed both disciplines), arguing at substantial expense about whether the Claimant was injured or not. Initially it was a common feature for the defence to allege that the impact was such as to be “incapable” of causing injury, although more recently this appears to have been adjusted to “unlikely” to cause injury. Other judges (including me) took a different view, and Kearsley provides an example. Judge Tetlow allowed the Claimant’s appeal, allocated the claim to the multi-track and gave consequential directions which included expert evidence on both sides. Given that it is not currently possible to proceed as envisaged by the Court of Appeal at paragraph 36, it is, in my view, appropriate to reconsider this approach in the light of experience to date.

9.

The following features have emerged in addition to the personal injury claims being low value (typically £2000 or less):

i.

They are fact sensitive. There is an abundance of variable factors. All that can safely be said at this stage is that there cannot be injury, unless there is vehicle occupant displacement, and that the lower the impact speed the less likely it is that injury will be sustained.

ii.

The assessment of the lay witnesses by the trial judge has proved crucial.

iii.

There have been problems with the expert reports, both engineering and medical: by way of example only, not addressing the range of opinion, and/or making no mention of the variables.

iv.

The costs incurred in claims which have proceeded to trial have been very substantial. Figures up to £40000 have been mentioned. I have not personally seen a figure that high, but in Murphy v Sambells, for example, the defence estimate at pre-trial checklist stage was costs incurred to date of over £8000, and estimated costs to trial £15000.”

He then said that these features could be readily demonstrated by looking at other cases. He referred to 9 cases for this purpose. At para 11, he said that he had been told in open court by Mr McCann (the defendant’s solicitor in the present case) and Mr Higgins (counsel who appeared regularly for the defendant in these cases) that they were not aware of any trial where the claim had failed because the judge accepted the defence expert evidence: they failed because the judge had rejected the claimant’s evidence as unreliable. The judge said that he had no reason to doubt this information. Mr Turner submitted to the judge that Kearsley supported the district judge’s decision.

Judge Holman decided what he referred to as the “generic issues” as follows:

“15.

I am not persuaded that Mr Turner’s interpretation of Kearsley is correct. I consider that you cannot divorce the final sentence in paragraph 35 from the previous sentence: “In the last resort it must be for the judge with case management responsibilities in the particular case to decide what directions are appropriate.” In that context the final sentence becomes a demonstration of the principle enunciated by Brooke LJ in Tanfern v Cameron-Macdonald at paragraph 32. In case management there may be a variety of options open, any one of which may be a reasonable solution. I do not think, therefore, that it is right to elevate “not wrong” to “right”.

16.

I have more information available to me than was available to the Court of Appeal. Mr Turner referred to it as anecdotal. That is not entirely accurate, but in any event the essence of case management under the CPR is flexibility, and it would be unfortunate, to say the least, if the court could not take into account judicial experience. If that were not the case, there would be a real risk of putting case management into a straitjacket.

17.

One must be wary of the “floodgates” type argument inherent in Mr Turner’s reference to encouraging false claims. Without proper statistical evidence, considerable caution is required as regards the assertion that there are “many” claims, which require the sort of expert evidence which features in these cases. We are all used to dealing with claims which are alleged to be dishonest, but they take many guises – tripping claims, staged accidents, and genuine accidents where people claim to have been passengers are all examples………..

18.

I have come to the conclusion, not without some hesitation since as I acknowledged earlier the scales are finely balanced, that on the basis of the current state of play I should revise the approach I have adopted in the past. Control by the court of the evidence is an integral part of the CPR. Rule 35.1 is in mandatory terms: “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”. CPR 32.1(1) gives explicit powers to control the evidence, and under 32.1(2) this can include the exclusion of admissible evidence. Some sort of split trial as suggested by Mr Willetts is, as I see it, inappropriate. The starting point should be that the issues of expense, expedition, proportionality and appropriate allocation of resources viewed in totality outweigh the equal footing criterion, and that accordingly the arena should not be opened up to further expert evidence. Allocation to the Fast Track then becomes appropriate. This reflects the point that these cases are fact sensitive. I have taken note of the honest comment in the position paper (and echoed in court by Mr Turner) that the courts may not have been best served by the quality of the experts. We shall see an example of this when I turn to this specific case. I noted also his reference to the production of persuasive reports. I bear in mind, also, the defence submission in Valins that the judge’s assessment of the lay witnesses was likely to be determinative. I emphasise that this is only the starting point. There may well be cases where a defendant can demonstrate a good and proper basis to adduce expert evidence on the causation issue, and the court will have to react accordingly. ”

Accordingly, in such cases the starting point is that expert evidence on causation should not be permitted in these cases. At para 19 of his judgment Judge Holman said that it did not follow that defendants and their insurers would be put to a significant disadvantage. They could and should put appropriate questions to the claimant’s medical expert.

In the second part of the judgment, he did not discuss the question whether there were any reasons for departing from his starting point. Rather, he identified a number of what he referred to as “problems” which had arisen with Mr Williams’ report and concluded that Mr Williams was not suitable to act as an expert witness. The judge’s concern as to the suitability of Mr Williams was heightened by the answers he gave to the claimant’s solicitors’ questions. His answer “Whiplash injuries are uncommon in Singapore, New Zealand, Quebec, Greece, Russia and Lithuania. These countries either have no or restricted mechanisms of compensation”. The judge said that this answer clearly demonstrated a lack of objectivity.

The judge then considered what he should do. He said that there was no ideal solution: it was a matter of identifying the least imperfect solution. He had little hesitation in concluding that the permission for Mr Williams should be revoked. Viewed in totality, the defaults were not capable of rectification. He decided that the defendant should be given permission to put questions to Dr Middleman and that Dr Middleman should have permission to give oral evidence at trial if so required by the defendant. He did not interfere with the district judge’s decision to allocate the case to the multi-track. He gave the defendant permission to appeal against his decision. He said that he recognised that the issues were finely balanced and that his decision represented a significant change of approach.

In his skeleton argument, Mr Turner submits that the judge was wrong to revoke the permission to rely on the evidence of an orthopaedic expert. The defaults in the presentation of Mr Williams’ evidence could have been cured. They did not disqualify him from giving evidence. But in oral argument, Mr Turner realistically acknowledged the difficulty he faced in seeking to persuade this court that the judge erred in principle or reached a decision that was not reasonably open to him. Mr Turner did not pursue the narrow issue. The judge did not give permission to appeal for the purpose of enabling the defendant to challenge his decision on the narrow question of whether he was right to hold that permission to rely on the evidence of Mr Williams should be revoked because he was not a suitable witness. He gave permission to enable the defendant to raise the wider issue as to the correct approach to the giving of permission to adduce expert evidence on questions of causation in low-velocity impact cases. It is to this wider issue that we now turn.

There can be no doubt that the decision of this court in Kearsley was intended to provide guidance as to the correct approach to the permissibility of expert evidence on causation in these cases, at any rate pending authoritative guidance in some test cases before a high court judge. The desirability for such test cases stems from the fact that the potential for low-velocity impact to cause injury (“the causation issue”) is a matter of some controversy. Some experts believe that one can never say definitively that, below a certain Delta V, injury is impossible or even very unlikely. They say that there are too many imponderables. Relevant factors include the claimant’s age and gender, his previous history of spinal conditions, his vulnerability to injury, whether he was braced at the time of the impact, the position of the head and neck at the time of the impact, the presence and position of any head restraint, the design and construction of the bumpers of the vehicles involved in the collision as well as other factors. Other experts take a different view and say that below a certain Delta V injury is impossible or at any rate very unlikely.

Mr Turner told us that, so far as he was aware, during the period between Kearsley and the decision of Judge Holman in the instant case, Kearsley was interpreted by judges as deciding that, where a defendant showed reasonable grounds for believing that the claimant had suffered no injury, the defendant should generally be permitted to adduce his own expert evidence on the causation issue. Since the decision of Judge Holman, there has been a wide divergence of approach. Some judges have followed the approach propounded by Judge Holman and tended to refuse permission to a defendant to adduce evidence from an expert on the causation issue. Their starting point in these cases has been that considerations of proportionality should prevail and that such cases should usually be tried on the fast-track without expert evidence on the causation issue. Others have continued to apply the general approach that was adopted during the three months following Kearsley. Yet others have adopted a half-way house position and generally allowed evidence on the causation issue, but only from a single joint expert. It is clear that our attempt in Kearsley to provide guidance in order to assist in achieving a degree of consistency of approach has been unsuccessful. What we said, therefore, needs to be amplified.

In his skeleton argument, Mr Turner subjects the judgment in Kearsley to detailed analysis. He submits that it decided that, where causation is raised as an issue, the interests of justice should usually prevail over considerations of proportionality: expert evidence should usually be permitted, although in the last resort the judge could exercise his or her discretion to disallow such evidence. He emphasises para 32 where the court said that it is a feature of contemporary England that many people are prepared to put forward bogus claims “which the defendant’s insurer cannot properly evaluate without recourse to the type of expert evidence that features in the present case.” Mr Turner submits that the decision on the facts in Kearsley and the tenor of the general guidance given by the court make it impossible to place a narrow interpretation on the decision. He draws particular attention to para 35 and the reference to the inconsistency of approach as to the management of these cases. Individual case management and the giving of directions different from those given by Judge Tetlow in Kearsley should be confined to “the last resort”. The corollary is that different directions were only justified for good reason.

Mr Turner also criticises the judge for relying on the nine first instance county court judgments to which I have earlier referred in order to show that expert evidence on causation was not tending to influence the outcome of low-velocity impact cases. Many of these cases had been compromised by the parties and none had been reported. Mr Turner submits that the body of cases relied on by the judge was selective and misrepresented the usefulness of expert evidence in these types of case. He has referred us to other cases where defendants have been permitted to adduce expert evidence on the causation issue and such evidence has been decisive or at any rate found to be helpful by the court. We agree that an analysis of these cases by the judge was unhelpful. Without a detailed examination of the facts of each case, it is difficult to see what conclusions could be safely drawn from them. Moreover, the judge was ill-advised to include in his judgment an analysis of the cases without giving the defendant an opportunity to consider each case and make relevant submissions.

Mr Turner advances four main criticisms of Judge Holman’s approach. First, the judge was bound by Kearsley to allow expert evidence of the type contained in Mr Williams’ report: he was wrong in law not to follow that authority. Secondly, he was wrong to say that expert evidence is of little assistance in low velocity cases and that such cases turn on the credibility of the claimant alone. Third, even if such cases do turn on the credibility of the claimant, the judge failed to take into account the fact that a claimant’s credibility can be undermined by robust cross-examination, which would be impermissible absent the ability to deploy expert evidence to support it. Fourthly, the judge was wrong to hold that a defendant’s position in such litigation is sufficiently protected by his ability to ask questions of the expert nominated by the claimant. There is what Mr Turner calls a “self-reinforcing” body of experts who are content to validate almost any claim without even a cursory analysis of the objective evidence in the case.

We do not consider that it is profitable to analyse the judgment in Kearsley and treat it as if it were a statute. As we have acknowledged, the guidance it gave needs amplification. We should state at the outset that the further guidance that we propose to give is no more than that. Case management decisions are ultimately a matter for the discretion of the court. But it is undesirable that different courts should adopt different approaches to the same general problem. That creates more uncertainty than is necessary or justified.

It is not controversial that in ordinary run-of-the-mill road traffic whiplash injury cases, there will be no need for expert medical evidence on the causation issue. The question of whether such evidence should be permitted only arises where the defendant contends that the nature of the impact was such that it was impossible or very unlikely that the claimant suffered any injury or any more than trivial injury as a result of the collision and that accordingly the claimant has fabricated the claim. It is only in such a case that the causation issue arises.

We think that it is desirable that, if a defendant wishes to raise the causation issue, he should satisfy certain formalities. In this way, the risk of confusion and delay to the proceedings should be minimised. Accordingly, where in a particular case a defendant wishes to raise the causation issue, he should notify all other parties in writing that he considers this to be a low impact case and that he intends to raise the causation issue. For the reasons set out at para 33 below, he should do so within three months of receipt of the letter of claim. The issue should be expressly identified in the defence, supported in the usual way by a statement of truth. Within 21 days of serving a defence raising the causation issue, the defendant should serve on the court and the other parties a witness statement which clearly identifies the grounds on which the issue is raised. Such a witness statement would be expected to deal with the defendant’s evidence relating to the issue, including the circumstances of the impact and any resultant damage.

Upon receipt of the witness statement, the court will, if satisfied that the issue has been properly identified and raised, generally give permission for the claimant to be examined by a medical expert nominated by the defendant.

If upon receipt of any medical evidence served by the defendant following such examination, the court is satisfied on the entirety of the evidence submitted by the defendant that he has properly identified a case on the causation issue which has a real prospect of success, then the court will generally give the defendant permission to rely on such evidence at trial.

We believe that what we have just said reflects the tenor of the judgment in Kearsley. There will, however, be circumstances where the judge decides that, even though the evidence submitted by the defendant shows that his case on the causation issue has real prospects of success, the overriding objective nevertheless requires permission for expert evidence to be refused. It is not possible or desirable to produce an exhaustive list of such circumstances. They include the following. First, the timing of notification by the defendant that he intends to raise the causation issue. Unless the defendant notifies the claimant of his intention to raise the issue within 3 months of receipt of the letter of claim, permission to rely on expert evidence should usually be denied to the defendant. It is important that the issue be raised at an early stage so as to avoid causing delay to the prosecution of the proceedings. The period of 3 months is consistent with para 2.11 of the Pre-Action Protocol for Personal Injury Claims which provides that a defendant be given 3 months to investigate and respond to a claim before proceedings are issued.

Secondly, if there is a factual dispute the resolution of which one way or the other is likely to resolve the causation issue, that is a factor which militates against the granting of permission to rely on expert evidence on the causation issue. In such a case, expert evidence is likely to serve little or no purpose.

Thirdly, there may be cases where the injury alleged and the damages claimed are so small and the nature of the expert evidence that the defendant wishes to adduce so extensive and complex that considerations of proportionality demand that permission to rely on the evidence should be refused. This must be left to the good sense of the judge. It does not detract from the general guidance given at para 32 above.

We should say something about single joint experts. They have an invaluable role to play in litigation generally, especially in low value litigation. But we accept the submission of Mr Turner that, at any rate until some test cases have been decided at high court level, judges should be slow to direct that expert evidence on the causation issue be given by a single joint expert. This is because the causation issue is controversial.

We repeat what we said at para 36 of Kearsley about the desirability of having authoritative guidance by a test case or cases on the issue as soon as possible.

In this judgment, we have attempted to amplify the guidance given in Kearsley. It was in order to do this that Judge Holman gave permission to appeal. But for the reasons stated at para 22 above, the order that the judge made revoking permission to rely on the evidence of Mr Williams is unappealable and the appeal must be dismissed.